Names disappear from Wisconsin's police reports

Liability concerns prompt changes

May 18, 2013

Wisconsin statute 19.31

“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

How to obtain unredacted DOT reports

Though many municipalities are redacting names and other information from crash reports, unredacted reports are available through the Wisconsin Department of Transportation. Reports cost $6 and can be obtained by calling 608-266-8573, pressing option 1 and following the prompts. Crash reports from all counties, cities, villages and townships are available within 10 days if the report is submitted electronically, or 20 days for the agencies still submitting paper reports.

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Police work that has traditionally been conducted in public view is increasingly being shielded, as insurance companies and municipal attorneys throughout Wisconsin push departments to withhold names from reports due to liability concerns.

A long-ignored federal privacy law is driving the redactions, interpreted by some municipal leaders to overrule a state public records law that says the full reports should be released.

With a growing number of departments redacting crash reports — and, in some cases, all incident reports — drivers injured in crashes may have no right to the identity of the other motorist, and communities can be kept in the dark about who police are arresting.

In Sheboygan Falls, Brenda O’Malley spent 13 days tracking down a crash report identifying the man who crashed into her daughter’s car after police wouldn’t release an unredacted report under the new policy. After the March 14 crash, she called everyone from the mayor and city attorney to the federal Department of Transportation before being pointed to the full reports available through the state Department of Transportation.

Dan Thompson, executive director of the League of Wisconsin Municipalities, said a recent Illinois court ruling on the matter “caught a lot of officials by surprise.” While the case out of Palatine, Ill., is still pending, many municipalities are taking a better-safe-than-sorry approach to redactions.

At least 30 municipalities now redact personal information from reports — citing the Palatine ruling and the 1994 federal Driver Privacy Protection Act it interpreted, according to media reports and agency websites. Officials in most of those municipalities say names are among the personal information barred from release.

“The danger and the damage and the cost of violating the federal law is substantially more than violating the public records law,” Thompson said. “If you release a record that you’re not supposed to release, you’ve now violated somebody’s civil rights, and you’re now in federal court where you have no cap for damages.”

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Robert Dreps, an attorney representing the New Richmond News in a lawsuit alleging the redactions are improper, said the decision to redact when in doubt flies in the face of Wisconsin’s public records law, which instructs officials to err on the side of openness. He said Congress did not intend the driver privacy act to shield police reports from the public.

“It’s hard to imagine how congressional intent like that could go unnoticed for almost 20 years — if that were the intent — and then to be discovered in only one of the 50 states,” he said.

Dreps said Wisconsin appears to be the only state where municipalities are changing policies. Attorneys and directors at municipal associations in Illinois, Indiana, Iowa, Michigan and Minnesota were not aware of any similar action by municipalities in their states — and several were not even aware of the Palatine case.

“Cases like Palatine bring it to the forefront, and people start realizing, oh my goodness, there’s a law out there,” said Gregg Gunta, an attorney who represents municipalities around the state on civil rights matters. “It’s not all of a sudden a decision to just start screwing over people who want records; it’s really a matter of protecting. It’s federal law. … I don’t agree with all of it either.”

Privacy law stems from Hollywood murder

The Illinois case — Senne v. Village of Palatine — was filed in August 2010 by Jason Senne, who alleged Palatine violated the driver privacy act by leaving a parking ticket with his name, date of birth and other personal information in public view on his windshield. He is the lead plaintiff in a class-action suit seeking $80 million — $2,500 for each parking ticket issued in the preceding four years.

The case was dismissed in district court, but the 7th Circuit Court of Appeals in Chicago overturned the dismissal in August and ordered that the case proceed. In the meantime, Palatine has asked the U.S. Supreme Court to review the case and consider dismissing it, but the high court has not yet responded.

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The driver privacy act was originally passed in response to the 1989 murder of actress Rebecca Schaeffer, who was shot by an obsessed fan who obtained her home address through California Department of Motor Vehicles records. The federal law prohibits the release of DMV data with certain exceptions, including use by attorneys, insurance companies and police in conducting their official duties.

An informal opinion Wisconsin Attorney General J.B. Van Hollen issued in 2008 said names and other personal information should not be redacted from police reports based on the driver privacy act because releasing public records to requesters is a statutory duty and part of law enforcement’s official duties.

“Reading (the privacy act) so restrictively that law enforcement agencies would be precluded from carrying out public records functions … would subvert the important governmental objective of facilitating public oversight of police investigations; impair public confidence in law enforcement activities; and do exactly what Congress intended to avoid — impede execution by law enforcement officers of their legitimate public duties and responsibilities,” Van Hollen’s opinion said.

Despite recent requests from numerous municipal attorneys, Van Hollen has declined to issue follow-up guidance in the wake of the Palatine case. A November letter to a group of city attorneys said the Attorney General’s Office was waiting to see if the U.S. Supreme Court takes the case.

Redaction policies inconsistent

For now, municipal attorneys and insurance companies are left to figure out the driver privacy act on their own, leading to highly inconsistent policies.

“There is no clear answer to give anybody,” said Dennis Tweedale, CEO of the League of Wisconsin Municipalities Mutual Insurance Co., which covers 370 cities and villages. “That’s why it’s such a mess. It’s all over the place.”

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Among the departments making changes, many are redacting names from only crash reports, but some are withholding names from all reports. Police typically run all people they contact through the DMV database to confirm identifying information, and some attorneys interpret the Palatine ruling to mean data that touches the DMV database — even if it doesn’t originate there — is barred from release.

But the state DOT, which oversees the State Patrol, has not changed its policy and still releases unredacted reports, said spokeswoman Peg Schmitt. Since all local reports are sent to the DOT — typically within 10 days — reports that are redacted in cities like Green Bay, Sheboygan or Wausau can be obtained in full from the DOT.

Schmitt said the DOT believes it is in compliance with the law and won’t reconsider its policy until the Palatine case works its way through the legal system.

The Milwaukee Police Department has yet another twist on the policy, releasing fully unredacted reports to those involved in a crash, according to Sgt. Mark Stanmeyer. People not involved in the crash can get a report with names, but all other personal information is redacted.

Dennis Olson, an agent with American Family Insurance, discovered Menomonee Falls police have no exception for the parties involved. He said police refused to release an unredacted report to a client of his who was involved in a crash in mid-April, and the insurance company had to obtain it on her behalf.

Insurers, attorneys drive changes

Municipal officials say they don’t care whether names are released, but without clear guidance on the Palatine ruling’s impact on public records laws, municipal insurers and attorneys are pushing police to redact.

“Without a change in the law, either through legislation or (Supreme Court) decision, I think it is very risky to release personal information derived from motor vehicle records on accident or incident reports,” Charles Thompson Jr., executive director and general counsel of the International Municipal Lawyers Association, said in an e-mail.

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Wauwatosa-based Cities & Villages Mutual Insurance Co. held a webinar on the subject in April and distributed materials shortly after, advising its 47 members to withhold names from all crash reports, incident reports and other police department records — unless the requester meets one of the exemptions in the driver privacy act.

Gunta, who developed the materials, said the 7th Circuit ruling creates an “open season” for attorneys who want to file class-action lawsuits similar to the one in Palatine.

“It finally caught the attention of responsible law enforcement that they have to follow the federal law until the law is either modified or changed,” said Gunta, who advised the insurance company to make the recommendations. “A lot of municipalities are hoping the law is modified or changed so they don’t have to go through all this redacting stuff.”

Said Thompson, the municipal league official: “We would like clarity more than anything else.”

That clarity could come from the New Richmond News lawsuit, but it is in the early stages and likely far from a resolution, Dreps said.

If the Supreme Court agrees to hear the Palatine case, it would likely take more than a year and wouldn’t necessarily address the public records issue, since the case focuses on how information is included on parking tickets.

The change could also come through Congress. U.S. Rep. Tom Petri, R-Fond du Lac, said he would consider taking action if the high court upholds the Palatine ruling.

“At some point it becomes important for the public to know about certain things, specifically accident reports which are used by insurance companies and others,” Petri said in a statement. “If the ruling in the 7th Circuit Court is upheld, then we may have to look at the law again to ensure that its original intent is clear.”

Arrests kept secret

Public records advocates say the most concerning element of the policy changes may be abandoning the American philosophy that government should be conducted in the open — particularly when it comes to arrests.

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“It’s apparently gone to the point in Wisconsin that there is now such a thing as a secret arrest, which I think is just astonishing, and I think should concern every citizen deeply,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “If just checking information against driver’s records renders it secret, then you can keep just about anything secret by taking that additional step.”

In Wausau, a man was arrested April 13 after allegedly striking three parked vehicles while driving drunk. But his name was withheld due to the driver privacy act and remained unpublicized until he was charged with third-offense drunken driving nearly two weeks later.

First-time drunken driving is not a criminal offense in Wisconsin, so those identities would be hidden even longer before making their way into court. This means high-profile arrests such as former Sheboygan Mayor Bob Ryan earlier this year or then-Attorney General Peg Lautenschlager in 2004 would go unpublicized at least until the citations make it to court, typically more than a month later.

“Without access to people’s names on police reports, there is no accountability for how law enforcement is performing their jobs,” Dreps said.